148 Pa. 265 | Pa. | 1892
Opinion by
This contention arises upon the will of Owen Knauss, deceased. The testator after providing for the payment of his just debts and funeral expenses, and making provision for his wife, Catharine, directs his executors to sell the residue of his estate, and divide the same into six equal parts or shares. He then proceeds: “ To my daughter, Emma Catharine, intermar
The appellant claimed, before the auditor, for over four years services rendered her father after she was of age, at the rate of 82.25 per week. The auditor allowed her at the rate of $1.75 per week for the entire time, and awarded her the sum of $470.50. An exception having been filed in the orphans’ court to this claim, the learned judge below sustained said exception, upon the ground that the appellant could not have recovered “by due course of law” because there was no contract to pay for her services.
A considerable amount of learning has been wasted in this ease, in defining what is “ due course of law.” It is sufficient to say, for the purposes of this case, that the presentation of the claim to the orphans’ court, and its adjudication by that court, is “ due course of law.” It may be conceded that, had there been no reference to this claim in the will, it could not have been recovered in the orphans’ court, nor by a suit at law. There was no evidence, outside of the will itself, of a contract between the appellant and her father, that she was to be paid for her services. We regard the will, however, as a distinct recognition of such contract, and that she had performed the work and labor under it. But there was no recognition of the amount she was to be paid. Hence, the testator provided that her portion of the estate should be increased by whatever may be recovered against the estate by “ due course of law.” In other words, her legacy was increased by that amount. Any
We do not regard Geisinger’s Ap., 1 Mona. 600, and Hancock’s Ap., 112 Pa. 532, as applicable to the facts of this case. The gift to the appellant was a legacy, the amount of which was to be ascertained by a judicial proceeding.
The decree is reversed at the costs of the appellees; the report of the auditor is affirmed, and it is ordered that distribution be made in accordance therewith.